Evidence, Procedure, and the Upside of Cognitive Error

No 1113, Berkeley Olin Program in Law & Economics, Working Paper Series from Berkeley Olin Program in Law & Economics

Abstract: Humans are imperfect information processors, a fact almost universally bemoaned in legal scholarship. But when it comes to how the legal system itself processes information, cognitive limitations are largely good news. Evidentiary procedure - inclusive of trial, discovery, and investigation - relies heavily on the fact that human mental capacity is limited. Such limits are crucial to separating sincere from insincere testimony. Moreover, notes and other "cognitive artifacts" that individuals make to conpensate for their limited congnitive ability are an important source of evidence. This article's primary objective is to elucidate the extent to which cognitive imperfection is beneficial rather than detrimental to evidentiary process and thus to law as a whole. Secondarily, the article discusses how the law of evidenciary process tilts the playing field of litigation in a manner that exacerbates the cognitive limitations of the potentially insincere and offsets the limitations of competing participants.

New Economics Papers: this item is included in nep-cbe and nep-law
Date: 2004-01-15
Note: oai:cdlib1:blewp-1113
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Related works:
Working Paper: Evidence, Procedure, and the Upside of Cognitive Error
Working Paper: Evidence, Procedure, and the Upside of Cognitive Error (2004)
Working Paper: Evidence, Procedure, and the Upside of Cognitive Error
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